Camerron L. Bradberry v. Department of the Air Force

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CAMERRON L. BRADBERRY,
Petitioner
v.
DEPARTMENT OF THE AIR FORCE,
Respondent
______________________
2025-1112
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-1221-23-0108-W-1.
______________________
Decided: April 10, 2025
______________________
CAMERRON L EWIS BRADBERRY , Lakewood, CO, pro se.
WILLIAM P ORTER RAYEL , Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by REGINALD T HOMAS BLADES , J R., BRIAN M. BOYNTON,
P ATRICIA M. MC CARTHY .
______________________
Before D YK, REYNA, and STARK, Circuit Judges.
Case: 25-1112 Document: 26 Page: 1 Filed: 04/10/2025

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BRADBERRY v. AIR FORCE 2
P ER CURIAM .
Camerron L. Bradberry petitions pro se for review of a
final order of the Merit Systems Protection Board
(“Board”) denying his individual right of action (“IRA”)
appeal alleging reprisal for whistleblowing. See Bradber-
ry v. Dep’t of Air Force, No. DE-1221-23-0108-W-1
(M.S.P.B. Aug. 27, 2024). We affirm.
I
In September 2019, Mr. Bradberry was appointed to
an excepted service position in the Air Force working for
Promotion Board Eligibility at Buckley Air Force Base in
Colorado, an appointment “subject to completion of a two
year trial period beginning [September 16, 2019].”
S. App’x 52.1 Shortly after starting his position,
Mr. Bradberry was repeatedly instructed by Major Ruben
Hernandez, Chief of the Promotion Eligibility Division, of
the need to cease distracting behavior and to follow the
chain of command. Among other things, Mr. Bradberry
failed to show up for work when scheduled, exceeded the
15-minute limit for breaks and 30-minute limit for deco-
rating the directorate for the holidays, and was consid-
ered to exhibit an overall unprofessional approach. On
January 15, 2020, Senior Airman Marianela Gonzalez
sent an email to Major Hernandez detailing
Mr. Bradberry’s performance issues and complaining that
Mr. Bradberry was continuing to make many significant
mistakes. S. App’x 62.
Also on January 15, Mr. Bradberry sent an email to
Senior Master Sergeant Dawn Couey stating that Staff
1 References to “S. App’x” are to the supplemental
appendix filed by the government with its informal re-
sponse brief.
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BRADBERRY v. AIR FORCE 3
Sergeant Jacob Brown had harassed him by “charg[ing]
[his] cubicle and block[ing] [his] entry/exit[,] . . . yelling at
[him,]” and “waving his hands around in
[Mr. Bradberry’s] face.” S. App’x 61. In February 2020,
Major Hernandez notified Mr. Bradberry that he was
being terminated from his employment due to his “dis-
tracting behavior towards coworkers and the office as well
as not following proper procedures or instructions.”
S. App’x 66.
Mr. Bradberry filed a complaint with the Office of
Special Counsel alleging retaliation for whistleblowing,
and the Office notified him in January 2023 that it had
terminated its investigation. In January 2023,
Mr. Bradberry filed an IRA appeal with the Board, alleg-
ing that he was removed in retaliation for his January 15,
2020, email, which he alleged was protected whistleblow-
er activity. In an initial decision denying Mr. Bradberry’s
request for corrective action, the administrative judge
(“AJ”) determined that Mr. Bradberry’s email was a
protected disclosure and that this protected disclosure
was a contributing factor in the Air Force’s decision to
terminate him. The AJ nonetheless denied corrective
action, assuming arguendo that he was not a probationary
employee and applying the factors laid out in Carr v.
Social Security Administration, 185 F.3d 1318 (Fed. Cir.
1999), to determine[e] that the Air Force demonstrated by
clear and convincing evidence that it would have termi-
nated Mr. Bradberry even absent this protected disclo-
sure. On August 27, 2024, the full Board denied
Mr. Bradberry’s petition for review and affirmed the AJ’s
decision, and the AJ’s decision became final.2
2 Mr. Bradberry initially filed a petition for review
of the AJ’s initial decision with this court before the Board
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BRADBERRY v. AIR FORCE 4
Mr. Bradberry subsequently petitioned this court for
review. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
II
This court must affirm a decision of the Board unless
it is: “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c). An agency decision is sup-
ported by substantial evidence if it is supported by “such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938). “[T]he Board’s credibil-
ity determinations are virtually unreviewable on appeal.”
Briley v. Nat’l Archives & Recs. Admin., 236 F.3d 1373,
1377 (Fed. Cir. 2001) (internal quotation marks omitted).
In the context of whistleblower retaliation, once an
employee has shown by preponderant evidence that a
protected disclosure was a contributing factor in the
challenged personnel action, the agency may rebut the
claim by showing, by clear and convincing evidence, “that
it would have taken the action even in the absence of the
protected disclosure.” Kewley v. Dep’t of Health & Hum.
Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998). “Clear and
convincing evidence is that measure or degree of proof
that produces in the mind of the trier of fact a firm belief
as to the allegations sought to be established.” 5 C.F.R.
had considered his petition for review. On November 6,
2023, this court granted the Air Force’s motion to dismiss
that petition for review. See Order, Bradberry v. Dep’t of
Air Force (No. 23-2289), ECF. No. 13.
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BRADBERRY v. AIR FORCE 5
§ 1209.4(e). This analysis involves consideration of the
three factors laid out by this court in Carr:
(1) the strength of the agency’s evidence in sup-
port of its personnel action;
(2) the existence and strength of any motive to re-
taliate on the part of the agency officials who were
involved in the decision; and
(3) any evidence that the agency takes similar ac-
tions against employees who are not whistleblow-
ers but who are otherwise similarly situated.
185 F.3d at 1323.
In his petition for review, Mr. Bradberry challenges
the Board’s application of the Carr factors. As to the first
Carr factor, the Board’s finding that the Air Force’s
reasons for terminating Mr. Bradberry’s appointment
“represent[ed] strong evidence supporting termination” is
supported by substantial evidence. S. App’x 24.3 Contra-
ry to Mr. Bradberry’s suggestion that “[t]he Air Force
provided no evidence of wrong doing,” Pet’r’s Informal
Br. 2, the Board found credible Major Hernandez’s testi-
mony and considered that Mr. Bradberry regularly
showed up late to work or failed to show up at all, im-
properly indicated an intent to use sick leave due to
inclement weather, did not answer incoming phone calls,
made careless mistakes, and worked on a matter after
being instructed not to work on the matter. See
S. App’x 15–20. The Board’s credibility determination is
virtually unreviewable on petition for review, Briley,
3 Even though the Board assumed that
Mr. Bradberry was not a probationary employee, it ap-
parently credited testimony that his superiors believed
that he was and acted consistently with that view.
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BRADBERRY v. AIR FORCE 6
236 F.3d at 1377, and we conclude that its consideration
of the first Carr factor is supported by substantial evi-
dence.
The Board reasonably concluded that the second Carr
factor “weighs very minimally” in favor of Mr. Bradberry
because Major Hernandez had “no personal motive to
retaliate against” him and, “at best, a slight professional
motive to retaliate against him.” S. App’x 26. The Board
found that Mr. Bradberry’s protected disclosure regarding
his January 15, 2020, interaction with Staff Sergeant
Brown “was not directed at Hernandez” and “did not
implicate [him] in any way.” S. App’x 25.
The Board found that the third Carr factor was neu-
tral, since there was no evidence of similarly situated
employees who were not whistleblowers. This is con-
sistent with our case law, as we have held that “the
absence of any evidence relating to Carr factor three can
effectively remove that factor from the analysis.” Rickel v.
Dep’t of the Navy, 31 F.4th 1358, 1366 (Fed. Cir. 2022)
(internal citation omitted).
On this record, we conclude that the Board’s weighing
of the Carr factors and its conclusion that the Air Force
had shown by clear and convincing evidence that it would
have removed Mr. Bradberry absent the protected disclo-
sure is supported by substantial evidence.
CONCLUSION
We have considered Mr. Bradberry’s remaining ar-
guments and find them unpersuasive. We affirm the
decision of the Board.
AFFIRMED
COSTS
No costs.
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